[1.0    INTRODUCTION

Transportation, whether domestic or international, is an important factor in a nation’s socioeconomic life and development and for many decades, the aviation industry has played a significant role in the development of economies around the world. Air transportation has, over the years, proved to be a preferred choice of transportation due to factors such as its safety, speed, mass conveyance of persons and goods and its effective prospect over other means of transportation. The global aviation industry has grown significantly, driven by the increasing interdependence of economies in both industrialized and developing countries. Consequently, the aviation industry has become a strategic sector, providing employment, spurring foreign direct investment, supplying linkages to other sectors of the economy, and thus, reinforcing the emergent global production chains.

The aviation industry is a critical element in Nigeria’s transportation system and indeed its economy.2 The consistent rise in the number of air passengers and aircraft carriers has spun a thriving service industry, driven not just by private-sector profit motives but also by innovation and the strong desire to satisfy customers. However, the dreadful danger that bedevils the Nigerian aviation industry is the increasing number of recurrent air accidents. Placing this reality in perspective, an airline operator is mandated to take extra care to ensure the safety and air worthiness of an aircraft as this is a vital criteria for operation within Nigeria’s airspace.[2] Consequently, the Nigerian aviation industry requires adequate regulation especially on safety, the rights of air passengers and the liability of air carriers. It is however, quite worrisome that air passengers still face distressing challenges such as delay of scheduled flights; cancellations; lost, damaged or delayed baggage etc., despite the existence of laws and implementation of new policies regulating the aviation industry. This article briefly examines air passengers’ rights and the attendant challenges, the extent of protection provided under the relevant laws and the liability of carriers.

Consumer protection and the protection of consumer rights is vital in the service industries like the Nigerian aviation industry where basic rights of air passengers to safety and satisfaction are blatantly ignored. In March this year an Arik aircraft was reported to have been filled with smoke from the aircraft’s cabin during a flight from Nigeria to Ghana. [3] The sorry plight of the passengers was aggravated by the failure of the oxygen masks to deploy during the scary incident. The case of one of Dana aircraft’s cabin doors falling off while in motion on 7th February 2018[4] and another of its aircraft overshooting the runway on 20th February 2018 are more examples. [5] Consumer (air passenger) protection refers to government laws and regulations which are designed for the protection of the rights and safety of consumers. It is therefore worthy of note to state that the key players in the Nigerian aviation industry are the government (through its various industry regulators), air carriers and the air passengers (the consumers). In the Nigerian aviation industry, air passenger protection is regulated by international conventions, the Nigerian Civil Aviation Act, 2006 and the policies and regulations made pursuant to the Act.

2.0   NIGERIA’S AIR PASSENGER PROTECTION LEGAL REGIME

The International nature of aviation industry gives it dynamism of some sort. Therefore, apart from the national law and regulations which regulate the industry, international convention like (previously) the Warsaw Convention, 1929 and (now) the Montreal Convention, 1999 also regulates the aviation industry in Nigeria. This convention is referred to as Convention for the Unification of Certain Rules Relating to International Carriage by Air (“the Montreal Convention as Modified”).[6] The principal law currently regulating the rights of air passengers in the Nigerian aviation sector is the Nigerian Civil Aviation Act.[7] The legal committee of the International Civil Aviation Organisation at its second meeting in Geneva in June 1948 resolved that revision of the Warsaw Convention was necessary[8] and this led to the Hague Protocol of 1955, the Montreal Protocol (1-4) and the Guatemala City Protocol. Finally, at the International Conference on Air Law held in Montreal from the 10th of May to the 28th of May, 1999, the Montreal Convention was signed and it came into effect in 2003.

The Montreal Convention was incorporated into Nigerian law by virtue of Section 48(2) of the NCAA Act 2006, with modifications as set out in its Third Schedule. The implication of section 48(2) is that the Montreal Convention (as modified) will have the force of law and apply to international carriage by air to which the rules apply from the commencement of the Act, irrespective of the nationality of the aircraft performing the carriage.10 It further provides that the Montreal Convention (as modified) shall be subjected to the provisions of the Act and shall govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons.[9]

The NCAA which is the principal law regulating the Nigerian aviation industry establishes the National Civil Aviation Authority (NCAA) and confers on it the duties and responsibilities of making regulations relating to the protection of air passengers

Historically, the Warsaw Convention was the first convention that imposed liability on a carrier towards the passengers for death and bodily injury, delay of passengers as well as for damage to and/or loss of baggage. However, limitations on the extent of liability were considered to be insufficient when compared with present day economic reality. Consequently, the Montreal Convention changed the Warsaw system as it concerns the liability limits in cases of death and injury. The Montreal Convention recognized the protection of the interests of air passengers and the need for equitable compensation. Notwithstanding the above, the Montreal Convention did not expressly cover certain areas of the air passenger-carrier relationship which more recently have given rise to increased regulatory activity by supervising agencies. These areas include assistance to passengers in cases of travel disruption, price transparency and so on. Article 19 of the Montreal Convention (as modified) deals with the issue of flight delays by making the carrier liable for damages occasioned by delay in the carriage by air of passengers, baggage or cargo.

The NCAA Regulations, 2015[10] also deals with air passenger protection. Part 19[11] of the regulation provides for air “passengers rights and airlines obligations to passengers”. The regulation further addresses issues on consumer protection and sets out specific parameters for compensation for overbooking and denied boarding as well as delays and cancellations of flights. It further provides for minimum rights and obligations for air passengers and air carriers.  The sphere of its application is restricted to passengers moving from one airport located in Nigeria to another airport in Nigeria, or passengers from another airport outside Nigeria to an airport in Nigeria, or passengers from a Nigerian airport to another airport outside Nigeria. Furthermore, the Nigeria Civil Aviation Policy introduced by the Federal Ministry of Aviation pursuant to section 1 of NCAA, 2006[12] also makes provisions strengthening the protection of air passengers. Its provisions strengthen the existing regulatory framework of the aviation industry and move the industry closer towards the direction of the safety, security and economic needs of the country by preserving and maintaining the powers and independence of NCAA to carry out effective safety oversight and regulation of the aviation industry. The Act also ensures that the safety regulatory regime of Nigeria meets the International Civil Aviation Organisation’s (ICAO) eight critical elements of a safety oversight system which encompasses aviation security, training, safety and quality control.[13]

2.1    NIGERIAN AIR PASSENGERS RIGHTS

Traveling by air confers certain rights on air passengers and these rights are recognisable all over the world with Nigeria not being an exception. Air passenger rights in the aviation industry can be referenced as the rights of air passengers which pertain to precautions which an air carrier must take to protect its passengers and their luggage from harm, loss or damage as prescribed by law.

Some of the rights available to passengers, as contained in the Nigeria Civil Aviation Regulations (NCAA Regulations), 2015[14] include:

  1. the right to the full value for air passenger’s money;
  2. the right to compensation for flight cancellation, delays, damaged/lost baggage and denied boarding for reasons other than technical, weather conditions, air traffic control restrictions, security risks and industrial disputes that affect the operation of the flight.

Nigerian courts gave credence to this right in some disputes brought before it:[15] iii.            the right to book and confirm tickets with an airline of air passenger’s choice;

  1. the right to the provision of a conducive airport environment before, during, and after

flights;

  1. the right to seek redress for all irregularities during flight;
  2. the right to timely feedback in respect of matters/complaints lodged with service providers;
  • the right to be fully informed about flight status;
  • the right to be treated with respect and dignity irrespective of race or physical condition.

It is questionable whether air passengers in Nigeria actually enjoy the rights enumerated above[16] as the legal framework designed to guarantee the enjoyment of such rights are lagging behind in comparison to other climes and low level of consumer education ensures that airline operators who are constantly in breach of these rights are easily let off the hook by regulators who lack the political will to wield the big stick. Air passengers in the country often face difficulties such as denied boarding, delays and cancellation of scheduled flights, unfair treatment among others.

2.2    AIR PASSENGER PROTECTION AGENCIES

The prominent agency that ensures protection of air passengers is the Nigeria Civil Aviation Authority (NCAA). The NCAA was established by section 2 of the NCAA, Act 2006. It certifies and monitors the technical equipment, personnel and airports in Nigeria. It is the apex regulatory body vested with the duty of overseeing the activities of airlines, pilots, engineers, cabin staff, airports and all service providers in general including the airport authority. In discharging this duty, the NCAA makes regulations guiding the aviation sector. One of such and the most relevant to this paper is that which deals with the rights and remedies available to air passengers.[17]

The NCAA also launched the Consumer Protection Department in March, 2011 to ensure that the rights of all aviation consumers are well protected. It has the duty of educating consumers and ensuring that quality services are rendered to them. In doing this, it collates and follows up on consumers’ complaints and guarantees that adequate compensation is paid to deserving complainants.

It will not be out of place to mention that the Consumer Protection Council (CPC) also has a role to play in the industry. CPC was established by the Consumer Protection Council Act.[18] The CPC is the apex consumer protection agency for all industries in Nigeria and this of course includes the aviation sector. The CPC has the broad duty of eliminating consumer rights abuses in Nigeria. It also has the function of providing speedy redress to consumers’ complaints through negotiation, mediation and conciliation. It has the power to cause the offending company, firm or trade associations to protect, compensate and provide reliefs and safeguards to injured consumers.

3.0   ENFORCEMENT OF AIR PASSENGER RIGHTS 

An air passenger who has suffered a wrong in Nigeria reserves the right to lay a complaint to CPC which is the overall agency with the reserved responsibility for protection of consumers (including air passengers) in Nigeria. Aside this, the Civil Aviation Regulations21 also mandates every airline to establish a consumer protection desk at every airport where it operates and to appoint an officer to manage the desk for the purpose of receiving and resolving air passenger complaints. Furthermore, the regulation stipulates that in the circumstance where it is impracticable for such complaints to be resolved, same should be channelled to the head offices. It is however the writers’ view that many airline operators are in default of this and the complaint resolving mechanism is not robust enough in many airports in Nigeria.

An air passenger who desires to lodge a complaint about violations of rights may also do so with the Directorate of Consumer Protection (DCP) of the NCAA pursuant to the Nigerian Civil Aviation Authority Consumer Bill of Rights; a bill based largely on Part 19 of the Civil Aviation Regulations 2015. [19] Upon receipt of such complaint, the DCP is expected to conduct an investigation into the complaint. It will inform the airline of receipt of the complaint and give it the opportunity to respond and advise on steps taken to resolve the matter. The DCP is expected to adjudicate on the merits of the complaint and determine whether it can be resolved at that stage or be transferred to the NCAA Administrative Hearing Panel (AHP).[20]

The AHP is a quasi-judicial body and both parties to a complaint are to transmit a statement to the panel upon which they can both be heard. Consequently, the panel may make any order ranging from the payment of compensation to the complainant, payment of fines or penalties or even referral for criminal prosecution where appropriate. However, it is important to note that there is no provision for the enforcement of the orders made by the panel and as such, this leaves an aggrieved complainant with the only option of recourse to the Federal High Court in the form of a civil lawsuit.

3.1    THE JURISDICTION OF THE COURT

According to Ogakwu, JCA in Otoakhia v. Aero Contractors Nigeria Limited,24 the Federal High Court has original and exclusive jurisdiction in matters pertaining to aviation, safety of aircraft and carriage of passengers and goods by air. This position of the Court of Appeal is in tandem with the provisions of Section 251 of the Constitution of the Federal Republic of Nigeria 1999.[21] However, where an aircraft passes through the airspace of several countries, it naturally falls within the realm of international law and this raises difficult questions of conflict of laws from time to time.

4.0    CONCLUSION

This article has placed in perspective the Nigerian air passenger rights as provided under Nigerian aviation laws. It has further demonstrated how the existing air passenger protection regime has impacted on the air transport safety in the Nigerian aviation industry. It is very obvious from what has been reviewed that there is a limit to which enforcement and regulatory mechanisms can go in protecting air passenger against abuse by air carriers. In addition, the applicable statutory instruments are not comprehensive and effective enough to take care of the challenges the air passengers are facing in the country’s aviation industry alongside an absence of adequate air passenger education and awareness.

With the above highlighted defects, there is no gainsaying that air passenger education need to be vigorously pursued in order to generate effective awareness of air passenger rights and responsibilities. Air passengers should be properly informed of their legal rights to avoid either too low or unrealistically high expectations, while legal and regulatory instruments also need to be reviewed to reflect provisions which will cater for the welfare and protection of air passengers.

Furthermore, the procedure for the enforcement of remedies for the violation of the rights of air passengers as enshrined in the statutory and regulatory instruments are cumbersome and in some instances nonexistent as frustrated passengers with legitimate claims abandon them as the mechanism for enforcement of such rights are either expensive, time consuming and/or adversarial to them. Hence, there is an urgent need to simplify the procedure for making complaints with the relevant regulatory agencies and establishment of a monitoring process to ensure such claims are resolved timeously.

In conclusion, the various regulators in the sector must increase their awareness drive regarding air passenger rights and ensure that complaints are fully investigated and sanctions meted out to defaulting air carriers whose poor consumer protection service and safety measures have continued to erode the confidence of air passengers in the sector. These efforts must be geared towards attracting proper investments and patronage into the industry thereby ensuring that Nigeria’s quest to attain its full potentials of becoming the aviation hub of Africa is not hampered.

For further information on this review and area of law please contact Olaniyi Fayomi: S. P. A. Ajibade & Co., Lagos by telephone (+234 1 472 9890), fax (+234 1 4605092) mobile (+234 9055690606), email (ofayomi@spaajibade.com) or Uche Matthew via: mobile (+234-8151191865), email (umatthew@spaajibade.com).

www.spaajibade.com.

[1] Olaniyi Fayomi and Uche Matthew, Associates, Dispute Resolution Department, SPA Ajibade & Co., Lagos Office. 2 Adekola, S., “Air transport contributes $8.2bn to Nigeria’s GDP- IATA”, Nigerian Tribune, Tuesday, August 17 2017, p.32.

[2] The Directorate of Airworthiness Standards (DAWS) as a regulatory body saddled with responsibility of ensuring that air operators take extra care to ensure safety and air worthiness of an aircraft, was established by Civil Aviation Act 2006 as one of the NCAA Directorates to perform the NCAA statutory functions of regulating the Nigeria civil aviation industry. DAWS is specifically responsible for maintaining regular safety oversight of all of the airworthiness aspects of Civil Aviation in Nigeria, which includes Air Transport Operators, Approved Maintenance Organizations and oversight of any other person or organization involved in the design/production/modification /repair / maintenance of aircraft and training aspects of personnel engaged in civil aviation.

[3] http://saharareporters.com/2018/03/09/arikaircrafttravellinglagosaccramakesemergencylandingduecabin

smoke

[4] https://premiumtimesng.com/news/topnews/257817danaairspeaksonaircraftdoorthatfelloff.html

[5] http://saharareporters.com/2018/02/20/danaaircraftovershootsrunwayportharcourt

[6] Convention for the Unification of Certain Rules for International Carriage by Air- Montreal 28 May 1999.

[7] (NCAA) 2006

[8] KM Beaumont, “Some problems involved in the revision of the Warsaw Convention.” 16 J. Air L. & Com. 14 (1949) 10 The provisions are applicable to non-international (local) carriage by air within Nigeria as well as by virtue of section 48 (2) of the NCAA Act 2006

[9] Emirate Airline v Aforka & anor [2015] 9 WLR (Pt 1463) p. 80 at 89

[10] Federal Republic of Nigeria Official Gazette No. 175 vol. 102 of 14th December 2015.

[11] Published in Government Notice No. 128 under S.I. No. 36 of 2015

[12] In Part 1.5 of the Policy

[13] The ICOA has identified primary aviation Legislation, specific operating regulations, state civil Aviation system and safety oversight functions, Technical personnel qualification and training, Technical guidance, tools and the provision of safety critical information, incensing, certification, authorization and approval obligations, surveillance obligations and resolutions of safety concerns as the critical elements that contracting states need to consider in their efforts to establish and implement an effective safety oversight system.

[14] See fn 12 above

[15] Emirate Airline v Aforka [2015] 9 WLR (Pt. 1463) p. 80 at 89, Emirate Airline v Mekwunye, (2014) LPELR22685(CA); and Harka Air Services v Keazor [2011] 13 NWLR (Pt. 1264) at pp. 320-364

[16] A Mustapha ‘An Appraisal of Air Passenger Protection Laws for Delay of Flight in Nigeria’ (2017) International Journal of Social Science and Humanity, Vol. 7 No. 1

[17] Which is in pari materia with those listed in paragraph 2.1 of this article

[18] CAP C25 LFN 2004 21 In section 19.22.1

[19] See fn. 12 above

[20] https://www.expertguides.com/articles/nigerian-aviation-and-passenger-rights/arkbfuwc 24 (2014) LPELR-23319

[21] Cap 23, Laws of the Federation of Nigeria]]>

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